The appeal to the European Court of Justice that has been brought by Sebirán SL against the decision of the Court of First Instance in Case T-332/04 Sebirán SL v OHIM and El Coto de Rioja SA may have gone unnoticed by some, since it is labelled in the Curia as "Law governing the institutions" rather than as "Intellectual property", which is normally the case with appeals involving Community trade marks. The appeal, under the new reference number Case C-210/08 P, seeks annulment of the Court of First Instance decision on the ground that the trade marks EL COTO and COTO DE IMAZ, on the one hand, and COTO D'ARCIS, on the other, are clearly compatible. According to the notice of appeal,

"Sebirán considers that the Community trade mark COTO D'ARCIS does not infringe the prohibition of Article 8(1)(b) of Regulation No 40/94 since upon opposition of the proprietor of an earlier mark, in this case the Community marks EL COTO and COTO DE IMAZ, the refusal to register the most recent is not appropriate because it is sufficiently dissimilar, for the purposes of that prohibition, to the earlier marks, notwithstanding that the goods or services covered by both marks are identical or similar, considering the whole and not the separate components, when in addition there is no possibility of a likelihood of confusion on the part of the public of the whole territory of the European Union. The likelihood of confusion does not include the risk of association with the earlier mark".